I do not concur in the conclusions at which my associates have arrived in this case. A deed reserving or creating an easement or right of way is to be construed like any other deed or instrument, according to the intention of the parties to it. When the intention appears from the face of the instrument, viewed in the light of the surrounding circumstances, effect will be given to it accordingly. If it appears from the deed, thus construed, that it was intended to reserve only a personal right to pass over the land, this is what is termed a right of way in gross, and is neither assignable or appurtenant to any other land. On the other hand, if it appears that it was intended to create a permanent right of way, for the benefit of an adjoining or contiguous tract, by whomsoever owned or enjoyed, then it is an easement in a legal sense, which becomes appurtenant to such other tract, and passes, with the title, to all subsequent holders of it. The question for solution in this case is, whether the deed from Wolfle to Carter reserved to the former only a right of way in gross, which was personal, and not assignable, or whether it created an easement which became appurtenant to the remaining portion of the tract, not sold and conveyed by Wolfle to Carter. The facts are, that Wolfle, being the owner of a tract of land, sold and conveyed the eastern half of it to Carter, and in the deed, granted and conveyed also to Carter a right of way through the western half, to the Petaluma road, and, in the same deed, reserves to himself “the privilege, free use and right of way” through the premises conveyed to Carter, to the embarcadero on Santa Margarita creek. Was this right of way, mutually secured to the parties, intended by them to be only a personal right, not transferable, or was it designed to be permanent and annexed to the respective tracts by whomsoever they might thereafter be held and enjoyed?
*119I cannot resist the conclusion that the latter is the true construction of the deed.
The two tracts are sufficiently described, and each becomes the dominant tract in respect to the right of way secured across the other. If either had stood alone and unconnected with the other, it might well have been deemed a mere personal privilege, not appurtenant to the land. But when the owner of a tract of land sells and conveys one half of it, reserving a right of way across it, and, in the same deed, grants to his vendee a right of way across the other half, it appears to me to be obvious that these were privileges intended to be annexed to the respective tracts, and to become appurtenant to them, and, of course, to pass with the title. In my opinion, the judgment ought to be affirmed.